Jeffrey D. Sadow is an associate professor of political science at Louisiana State University Shreveport. If you're an elected official, political operative or anyone else upset at his views, don't go bothering LSUS or LSU System officials about that because these are his own views solely.
This publishes Sunday through Thursday with the exception of 7 holidays. Also check out his Louisiana Legislature Log especially during legislative sessions (in "Louisiana Politics Blog Roll" below).

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20.11.12

While flawed, opinion request does raise valid issues

While the rationales offered in a request by members of the Louisiana
House of Representatives are inadequate to produce a result they will like, the
exercise of asking for the attorney general’s opinion of the law and Constitution
on this matter might serve a broader and more useful policy-making purpose.

Spearheaded by state Rep. Kirk Talbot on
behalf of 17
fellow members who fancy themselves as fiscal hawks (more
symbolically than in substance), the request
made of Atty. Gen. Buddy
Caldwell claims the current state budget runs afoul of the law and
Constitution in three ways. First, it claims that money predicted to be used as
a revenue source from outside of the Revenue Estimating Conference procedure
that they term as a “contingency,” cannot be used; this budget uses such funds.
Second, it claims that some of these funds are “fictional” because they won’t
come about; this budget includes as in the general fund money from an unused hospital
building and expected recoveries of excess paid out funds. Third, it claims that
placed into a fund any that were initially determined by the REC as
nonrecurring stay nonrecurring and cannot be removed from that fund for
nonrecurring reasons; this budget takes money declared nonrecurring, puts it
into a permissible fund, then removes to the general fund a like amount of
money from that fund for spending on recurring purposes.

Interesting questions they are, but on closer investigation the
assertions of legal violations do not hold up. The contingency portion of the
Constitution is designed to address things along the lines of, “if something
else by statute happens leaving a funding source unavailable without backup,
this creates an impermissible hole.” However, this is not what was done in the
budget. Here, the dispute simply is over the estimation of available funds –
the concept of having to forecast what will be out there and available a principle
applied to every cent of revenue that is declared as “there” by the REC.

There is nothing certain to the amount of any revenues anywhere in the
budget. The only difference is that the REC’s estimates are considered sacrosanct
by this logic, and all other sources open to question and thereby illegitimate.
No constitutional reason exists to privilege the REC estimates in this case,
nor to question any others. Rather, the solution is political – if the Legislature
as a whole does not believe in this kind of estimate, it is free to alter or to
excise it from the budget.

The same reasoning applies to invalidate their second claim. The
Constitution and statutes are silent on what constitutes a “fictional”
estimate, nor does it connote invincibility to REC forecasts. Therefore, if we
are to accept that there is some implied standard of reasonableness that must
be met when figuring out what revenues will exist on which to budget, a very
good argument can be made that the REC routinely violates this as well, as
sometimes its forecasts are off spectacularly compared to what actually
transpires.

So, buying that argument means what’s sauce for the goose is sauce for
the gander – the entire budgeting process becomes unreliable and open to
challenge, relying upon some ill-defined standard known apparently only to the
18 complainers. But the Constitution creates no such concept. Again, the
solution is political – if the Legislature believes the numbers to be
overestimated on the revenue side, it is free to reduce spending to match.

The third claim is the only that approaches having merit, at least on a
basis of right reason. One would expect that if “nonrecurring” money goes into
a place designed to hold it, that the vessel does not change the nature of it
and it remains “nonrecurring.” But the problem is the Constitution does not
affirm that. It only makes the recurring/nonrecurring distinction as it relates
to when the money becomes declared as revenue, not after it is dumped into a
fund.

In the part of the
Constitution that addresses this, the alternatives for use of nonrecurring
funds specify only two funds may receive them, the Budget Stabilization Fund
and the Coastal Protection and Restoration Fund – it is with the latter that
the complainers say putting in nonrecurring dollars and removing an identical
amount to plunk into the general fund is problematic. The BSF is designed with
a rigid procedure in order to withdraw, so this kind of funds sweep clearly
cannot happen with it.

Yet the passage in
the Constitution and statute
dealing with the CPRF leaves this matter almost entirely unaddressed. As long
as a $500 million minimum is observed, with state funds that went into it if money
in the fund is “appropriated for purposes consistent with the Coastal
Protection Plan developed by the Coastal Protection and Restoration Authority,”
it may be spent. So if the Gov. Bobby
Jindal Administration can prove whatever got swept from this will get spent
through the general fund for a purpose consistent with this, there’s nothing
unconstitutional about this part of the budget.

Thus, all of these claims rest upon fantastic interpretations of the
legal system entirely novel and inconsistent with past practices and
interpretations, and therefore are illegitimate. That doesn’t mean the effort
doesn’t provide some clarity for future policy-making.

In the first pair of instances, the exercise should clue the
Legislature into pursuing political solutions – probably not music to the ears
of the complainers, as they have demonstrated insufficient strength of
persuasion to get majorities to think their way, hence their preference to
impose their views by judicial fiat. In the case of the last, a constitutional
amendment would be required along the lines of the ill-conceived
Amendment 1 that passed recently that would make the CPRF into a lockbox
immune from funds sweeps.

One hopes this effort stems not from a desire for publicity, which seems
consistent with the group’s past practice of offering policy options that
address the symptoms but not the disease of its members own making that plagues
Louisiana’s fiscal system, but from genuine desire to rationalize the budgeting
process. Changes are to be found not in the negations asked in their request,
but in the suggestions above.

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